Is the Individual Mandate Constitutional?

Below is today’s column on the constitutional challenges to the health care legislation. I will be participating in a live chat at 1:00 p.m. at the Forum with USA Today.

The new health care law has states and citizens lining up — but not quite in the way President Obama or Congress had hoped. Across the country, lawsuits are being filed that could have sweeping implications, not just for health care but our constitutional system. To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history.

With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states’ rights would be left if it prevailed.

Hypocrisy rears its head
To get to the constitutional question, you first have to strip away the deep layer of hypocrisy in Washington. Many lawmakers now screaming about the sanctity of federalism voted for prior laws that were overturned by the Supreme Court on federalism grounds. Moreover, few of these mostly Republican members uttered a word of support when states opposed federal interventions on medical marijuana and physician-assisted suicide during the Bush administration. The guarantee of federalism was essential to ratifying the Constitution and embodied in the 10th Amendment guaranteeing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Historically, however, federalism is a constitutional rule honored largely in the breach by Congress.

For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.

There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care — representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter.

To be sure, the Supreme Court has stretched the meaning of interstate commerce to cover such things as the farmers growing wheat for their own consumption. Indeed, many long ago wrote off federalism as a rather quaint and outmoded concept. In Wickard v. Filburn (1942), Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. However, this was at least a traditional commercial activity. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.

‘Inference upon inference’
When Congress has ventured outside of traditional commercial areas, it has run into trouble. For example, in 1990, Congress criminalized certain conduct as part of its Gun-Free School Zones Act. The Supreme Court struck it down in 1995 and held that such laws did not substantially relate to interstate commerce. The court refused to “pile inference upon inference” to find an interstate claim.

This brings us back to that 18-year-old Virginian. Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.

Though strong arguments can be made for health care reform and the individual mandate, these are matters that should not be decided by mere fiat of Congress but rather by the courts. Federalism was already on life support before the individual mandate. Make no mistake about it, this plan might provide a bill of good health for the public, but it could amount to a “do not resuscitate” order for federalism.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.